Additional Penalty in Retrospective Concurrence and Quashing of the First Judgment

Facts

The appellant X.A. was sentenced by the Cantonal Court of Zurich on April 28, 2009 at first instance to a custodial sentence of 3 years, 23 months of which were suspended, for serious bodily harm and affray. The Federal Supreme Court upheld an appeal by the Zurich Public Prosecutor's Office against this judgment on January 28, 2010 and remanded the case to the lower court for a new determination of the sentence. The Cantonal Court then set the custodial sentence at 4 years and 9 months in its judgment of July 19, 2010.

During the ongoing appeal period for the nullity appeal to the Zurich Court of Cassation and the appeal to the Federal Supreme Court, the appellant committed another criminal offense, namely an attempted serious assault. The Cantonal Court then imposed an additional sentence of 3 1/2 years.

Considerations

The Federal Supreme Court concluded that the requirements for the application of Art. 49 para. 2 of the Swiss Criminal Code (StGB) were not met. Since the appellant had committed the new offense only after his first-instance conviction on April 28, 2009, the Cantonal Court should have imposed a separate sentence instead of an additional sentence pursuant to Art. 49 para. 2 StGB.

The decisive factor for the question of whether the principle of aspiration under Art. 49 para. 2 StGB is applicable is…